Harvard Law Record
The Independent Newspaper
January 28, 2010
SUNSTEIN
SKEWERED OVER
“INFILTRATION”
PROPOSAL
HLS Professor
Cass Sunstein
’78, now head of
OIRA, is under
fire again for one
of his academic
papers. The pro-
lific professor
was attacked
during his confirmation hearings over
an academic argument that appeared to
propose that humans litigate on behalf
of animals. Critics are now alarmed by a
paper Sunstein wrote with Prof. Adrian
Vermeule ’93 in 2008 titled “Conspir-
acy Theories” (available on the SSRN).
Civil liberties blogger Glenn Green-
wald of Salon.com warns that the paper
proposes that government agents “cog-
nitively infiltrate” websites of activists
who spread “false conspiracy theories”
against the government, with the goal of
increasing citizens’ faith in government
by decreasing the number of untrue ru-
mors circulating about state activities.
The paper goes on to reject an outright
“ban” on conspiracy theories or tax on
their propagators but notes that such ac-
tions could “have a place under imagi-
nable conditions”.
As head of OIRA, part of Sunstein’s
authority includes “overseeing policies
relating to privacy, information quality,
and statistical programs.”
Citizens United
v. F E C
Campaign Finance Jolted by
Latest Free Speech Ruling
See Page 2 for Coverage
INSIDE
The HL Record
Opinion
• Citizens United Reactions
• Ogletree on Obama’s First Year
• One Year After the Gaza War
Features
• Cambridge, USA in India
• HLAB’s New Board
• Photo: Jarvis Field Frozen
at Harvard Law School
www.hlrecord.org — twitter @hlrecord Vol. CXXX, No. 2
Clinical Student DISPIR ITED DEMS
Detained and DOOM ED COAKLEY
Deported at Poll Data Shows Low Liberal Turnout Was
Israeli Airport Key To Victory by Republican Candidate
BY REBECCA AGULE BY CHRIS SZABLA that an energized Republican base – and
a dispirited Democratic one that largely
A warm smile and easy laugh reveal By last Tuesday night, it was hardly a stayed away from the polls – con-
Hebah Ismail’s unthreatening, gentle serious shock that little-known State tributed significantly to the election’s
personality. An American citizen, this Senator Scott outcome.
3L of Egyptian descent works with the Brown, a Re- The quality
International Human Rights Clinic on publican, had of Coakley’s
projects related to Bedouin land rights. been elected to campaign was
Hebah wears a hijab. She still does not fill the U.S. chief among
know which of one, or combination, of Senate seat of reasons given
these characteristics prompted the se- Massachusetts’ for her loss.
curity and immigration personnel at Tel “liberal lion”, The Attorney
Aviv’s Ben Gurion International Airport Ted Kennedy. General had
to deem her dangerous and deny her In the last taken her lead
entry to Israel. weeks of the for granted in
Ismail flew to Israel to join Clinical campaign to the weeks lead-
Instructor and Global Advocacy Fellow replace him, ing up to the
Ahmad Amara and a fellow student for Democratic general elec-
field research related to a 2008 report Party officials tion, leaving
prepared by the Goldberg Committee. and affiliates for a vacation
Convened by the Housing Ministry in groups had (IN) SHOCK & AWE (SHUCKS) as her lead in
2007, the Goldberg Committee exam- joined together Mass. Attorney Gen- Scott Brown charmed the polls evap-
ined land disputes between the state of to pour money eral Martha Coakley many into picking a orated and
Israel and the Bedouin community and – and ads – lost the Senate seat Republican for the first even deriding
offered subsequent recommendations. into the Bay she thought was hers time...or did he? tested cam-
As her colleagues had already been in State. Their ef- Photos: Flickr users Dan Kennedy (left), roberthuffstutter (right)
paign tactics –
Israel for several days, Ismail arrived fort was in- like greeting
alone on the afternoon of December tended to save the flagging candidacy voters in the cold after hockey games.
23rd and planned to travel from Tel of state Attorney General Martha Coak- Brown, meanwhile, capitalized on an
Aviv to Be'er Sheva by train. That ley, whose massive lead had evaporated everyman image (embodied in his
evening, as Amara prepared to meet Is- in the span of mere weeks. Even a cam- truck, which became a campaign staple)
mail at the station, the Ben Gurion se- paign rally presided over by none other and an indefatigable – if seemingly
curity services phone to notify him that than President Barack Obama ’91 failed quixotic – effort to meet and greet vot-
she had been detained. to stem the tide. ers.
“I originally knew something would The question on the morning after But Coakley and Brown themselves
happen, that she would be held,” Amara Brown’s come-behind win – which were not the only heavily-invested par-
said. “And we prepared for that.” made him the first Republican Senator ticipants in the race: the efforts of out-
As expected, Ismail was pulled aside elected from the state in nearly four of-state groups played a major role. The
in border control for more intense decades – was why voters in the tradi- special election’s characteristics – it
screening. Over several hours, security tional Democratic bastion of Massa- was held in the middle of winter, in a
personnel questioned her reasons for chusetts turned to a member of the state where the Democrats believed
traveling to Israel, often returning to GOP. Multiple theories were offered in they were assured victory – put it on the
whether or not she intended to visit the the aftermath. But new data indicate map of groups who believed it could be
SEC Restructures to Catch Next Madoff
Israel, cont’d on pg. 3 Coakley, cont’d on pg. 7
Hedge Fund Expert Norman Champ ‘89 to be Top New York Investigator
BY MATTHEW W. HUTCHINS and Congress are demanding swift action to improve the
quality of financial industry oversight.
Reeling from the fallout of the Mad- But while the Commission seeks new and innovative
off scandal, the Securities and Ex- strategies for fulfilling its policy objectives, its core mis-
change Commission has been sion of overseeing financial markets continues to de-
searching for a new strategy and new pend on its ability to directly probe into
leadership in its mission to protect the the activities of market players, and
investing public from fraud. As part starting at the end of January, the front-
of this effort, the S.E.C. recently un- lines inspectors in America's financial
veiled six new organizational depart- capitol will have a new chief, private
ments that will lead units aimed at fund industry expert Norman Champ
supervising particular domains of fi- '89, who will take on the role of Re-
nance: asset management, market abuse, structured and gional Associate Director for the
new products, foreign corrupt practices, and municipal S.E.C.'s New York Regional Office.
securities and public pensions. These changes come with a Champ brings a wealth of experience as an attorney and in-
public recognition that in the rapidly changing world of mod- dustry insider, having worked for eight years at Davis Polk
ern finance the Commission must be constantly vigilant to & Wardwell before becoming general counsel at Chilton In-
keep pace with innovation in the markets, as well as a keen vestments, a private investment management fund based in
awareness that in the wake of the Madoff fiasco the public SEC, cont’d on pg. 6
 C I T I Z E N S
Page 2
"Judges are like umpires. Umpires don't make
the rules; they apply them. They make sure
everybody plays by the rules. But it is a limited
role." - Chief Justice John Roberts ’79, speak-
ing to the Senate Judiciary Committee in 2005
That was then.
Now, the conservative wing of the U.S. Supreme
Court defers neither to its own precedents nor to de-
cisions by other branches of government. In fact,
when stare decisis and our constitutional system of
checks and balances interferes with their personal pol-
icy preferences, they shrug and legislate from the
bench.
The Court's opinion in Citizens United v. FEC, is
being hotly debated for its conclusion that corpora-
tions and unions are, constitutionally speaking, people
whose free speech the Founders intended to protect.
Will there be an unprecedented flow of money into
politics from already powerful interest groups? Is this
merely the faucet being turned up, or the breaking of
the dam? Few doubt that this decision will have a pro-
found impact on our country's electoral landscape.
However devastating the consequences, though,
how this Court arrived at such a myopic ruling may be
even more disturbing.
Five of six Republican-appointed Justices aban-
doned legislative deference, overturning more than
100 years of campaign finance legisla-
tion. In the same opinion, they reversed
the two leading opinions on campaign fi-
nance law. The law's shape-shifting
properties seem to prove the legal realist
maxim that the Court is not final because
it's right, but right because it's final.
Somehow, though, old sayings are
hardly comforting when it becomes so
What started as a 90-minute political
campaign documentary against then-
presidential candidate Hilary Clinton
ended in the Supreme Court with a de-
cision that was described by some critics
as one of the worst since Dred Scot.
“Hillary: The Movie,” was produced by
Citizens United, a conservative non-
CITIZENS UNITED: UPHOLDING
profit, as part of its campaign against the
former democratic presidential aspirant, and
INSTITUTIONAL CORRUPTION
was released during the Democratic presi-
dential primaries in 2008.
The judgment, which relaxes the restric-
tion on power of the corporations to directly
spend on advertising during federal elec-
tions, was described by Harvard law Professor
Lawrence Lessig as “proverbial fuel on the fire”. He
notes that the issue is not whether corporations are si-
lenced or their First Amendment right to free speech
upheld. More importantly, the outcome is an assault
on democracy, capable of promoting a system that
will further erode the public trust in their elected of-
ficers. Lessig cautioned that decision would under-
mine the participation of the citizens in the democratic
process and that it gives unfair advantage to corpora-
tions, whose financial prowess will give them a
stronger voice than the electorate.
Lessig heads Harvard’s Safra Center for Ethics,
which studies the intersection between politics, inter-
est groups and corruption in the U.S. politics. As part
of the reading for a course convened by the program,
I came across a very interesting article by an expert on
political corruption, Zephyr Rain Teachout (found in
the Cornell Law Review, Vol. 94, No. 341, 2009, for
those who are interested), which I found very relevant
to the Court’s decision in Citizens United.
Teachout writes that the Framers of the Constitu-
tion were obsessed with corruption and saw it as one
of the greatest threats to democracy. They designed
the system in such a way that corrupt leaders will not
only loose their positions, but also their reputation.
The Founding Fathers built mechanisms into the Con-
stitution to safeguard democracy by ensuring trans-
parency, accountability and citizens’ participation in
U N I T E D
Harvard Law Record
UMPIRES RUNNING AMOK
by Chris Cassidy
readily apparent that, if you want to win the game, all
you have to do is change the umpires.
Justice John Paul Stevens found room in his 90-
page dissent to make exactly this point. "The only rel-
evant thing that has happened since Austin and
McConnell [which Citizens United overturned] is the
composition of this Court," Justice Stevens wrote. The
sentiment was shared by Justice Sandra Day O'Con-
nor, who stepped down from the Court in 2005 and
was replaced by Justice Samuel Alito -- a member of
the Citizens United majority. Asked for her legal as-
sessment of Citizens United, she cooly instructed her
questioner to read McConnell, for which she authored
the Court's majority opinion.
Not only did the umpires vastly expand the strike
zone in Citizens United, they went out of their way to
do so by ordering reargument of the case. After the
Court heard oral argument on the narrower issues
raised by the parties last term, the Court ordered rear-
gument on whether the existing series of campaign fi-
nance decisions was ripe for reconsideration. Put
another way, the Court didn't like what the pitcher was
throwing, so they wiped it from the record books and
By Aminu Gamawa
the political process. The independence of the politi-
cal office holders from other special interests was of
paramount importance to the Framers.
Teachout writes that “corruption was discussed
more often in the constitutional convention than fac-
tions, violence, or instability. It was a topic of con-
cern on almost a quarter of the days that the members
convened. Madison recorded the specific term cor-
ruption fifty-four times, and the vast majority of the
corruption discussions were spearheaded by influen-
tial delegates Madison, Moris, Mason, and Wilson.
The attendees were concerned about the corrupting
influence of wealth, greed, and ambition.” It is not an
overstatement to say that the Framers actually saw the
Constitution as an instrument to fight corruption.
The Framers defined political corruption to include
“self-serving use of public power for private ends, in-
cluding, without limitation, bribery, public decisions
to serve private wealth made because of dependent re-
lationships, public decisions to serve executive power
made because of dependent relationships, and use by
public officials of their positions of power to become
wealthy”.
Their efforts to curb corruption in the political
process is visible in issues including the regulation of
elections, term limits, limits on holding multiple of-
fices, limitations on accepting foreign gifts, the veto
power, the impeachment clause, and provisions for
the separation of powers, among other measures, with
January 28, 2010
ordered a do-over suited to their specific tastes.
Setting aside the Court's proactive role in
raising the issues that it wanted litigated, it
should not go unacknowledged that the Court
can and does reverse itself on occasion. In
Brown v. Board of Education, for instance, the
Court rejected the long-standing "separate, but equal"
principle that under-girded Jim Crow. The Justices
founded their uninimous opinion in constitutional
principle of equal protection, and certainly not with-
out considering the laudable goal of ending state-
sponsored discrimination based on race.
Here, too, the Court announced an opinion
premised on constitutional principles -- namely, free-
dom of speech -- in reversing itself. But the similari-
ties end there.
In Brown, the Court's conscience guided it to un-
ravel legalized segregation, giving greater opportu-
nity to school children across our country. Now, the
conservative Justices have hijacked the levers of leg-
islative power to protect corporations from having
their "voices" muffled by Congress. In doing so, they
have further entrenched special interest politics into
our system of governance.
"While American democracy is imperfect, few out-
side the majority of this Court would have thought its
flaws included a dearth of corporate money in poli-
tics," Justice Stevens observed.
Alas, these misguided umpires have
run amok.
Chris Cassidy is the Assistant Director
of Communications at the American
Constitution Society and Criminal Jus-
tice Blogger at Change.org. The views
expressed here are solely attributable to
Cassidy.
a view to ensure that leaders represent
the interest of their constituency and not
personal interests. In the words of Tea-
chout, “taking seriously the architecture
[of the Constitution] requires more than
passing knowledge of what motivated
the choice of architecture. Political cor-
ruption is context without which other
specific words don't make sense; it is
embodied in the text itself through other
words that can’t be understood without un-
derstanding corruption”.
History has shown that when leaders put
their self-interest above those who elected
them, it undermines the trust of the people in
the process and inevitably leads to collapse of the
democratic system. The Roman and Greek empires
are classic examples. The danger of democracies leav-
ing political corruption unchecked is succinctly cap-
tured by Teachout: “voters will stop voting, people
will stop running for office, and citizens will stop
making serious efforts to read news and understand
the public issues of their day, because they will be-
lieve that such efforts are futile,” she writes.
In McConnell v. FEC, 540 U.S. 93, which the Court
overturned in Citizens United, the Court had made the
following powerful comments:
“Just as troubling to a functioning democracy as
classic quid pro quo corruption is the danger that of-
ficeholders will decide issues not on the merits or the
desires of their constituencies, but according to the
wishes of those who have made large financial con-
tributions valued by the office holder. Even if it occurs
only occasionally, the potential for such undue influ-
ence is manifest. And unlike straight cash-for-votes
transactions, such corruption is neither easily detected
nor practical to criminalize. The best means to pre-
vention is to identify and remove the temptation.”
Ignoring the threat of corruption to democracy is,
therefore, a serious problem that we must not be taken
lightly. I agree with Teachout when she writes that
“internal decay of our political life due to power-and-
wealth seeking by representatives and elites is a major
Corruption, cont’d on pg. 6
January 28, 2010 Harvard Law Record Page 3

CITIZENS UNITED: CORPORATE MONEY NOT BEHIND FLOODGATES

BY NICHOLAS JOY
In the decision handed down by the
Supreme Court in Citizens United v.
Federal Election Commission on Janu-
ary 21, the Court upheld the disclaimer
and disclosure provisions of the Bipar-
tisan Campaign Reform Act of 2002
(also known as the McCain-Feingold
law) while at the same time invalidat-
ing a ban on electioneering communi-
cations by corporations and unions,
political speech that the Court said the
government may not suppress simply
because of the speaker’s identity.
Citizens United has already caused an
uproar. President Obama has said of the
decision that he “can’t think of anything
more damaging to the public interest.”
Justice Stevens wrote in his partial dis-
sent that the Court has rejected a cen-
tury of history of regulating corporate
electioneering, a claim that many pun-
dits have taken up. In all, the critics
have painted a picture of Citizens
United as a dangerous innovation that
will allow unbridled abuse of the elec-
toral system by corporations and shake
the very foundations of our democracy.
These hysterics are overblown for a
number of reasons. First, the regulation
that the Court overturned covered only
a relatively limited category of advo-
cacy. The provision that the Court de-
clared unconstitutional prohibited
corporations from using their general
treasury funds to pay for “electioneer-
ing communications.” Electioneering
communications are defined as any
broadcast, cable, or satellite communi-
cation that refers to a candidate for fed-
eral office and that is broadcast within
30 days of a federal primary election or
60 days of a federal general election in
the jurisdiction in which that candidate
is running for office. Unless the elec-
tion law statute were to be read so
broadly as to make the “electioneering
communications” language redundant,
this restriction did not even touch com-
mercials broadcast outside the specified
window before an election, political ap-
peals in print such as newspaper adver-
tisements and books, or internet
campaigning tools such as the Youtube
videos and Google ads that have be-
come so important in recent elections.
Even before Citizens United, corpo-
rations were not prevented from broad-
casting so-called “issue” ads on TV and
radio right up to elections so long as
they did not expressly support one can-
didate or another, even if the intentions
behind the ads were thinly veiled. Al-
though electioneering communications
certainly play a major role in modern
political campaigns, it is hard to imag-
ine these organizations gaining dramat-
ically more influence as a result of this
decision, given the numerous avenues
available in the past for corporations
and unions to influence the electorate.
Furthermore, the notion that the Citi-
zens United decision runs counter to a
century of regulation of corporate elec-
tioneering is not, strictly speaking, ac-
curate. The practice of prohibiting
corporations from making political con-
tributions does indeed date back at least
to the Tillman Act of 1907 and is unaf-
fected by this ruling. But the line of
cases which allowed the regulation of
independent expenditures by corpora-
tions is of much more recent vintage.
Citizens United overturns the 1990
case Austin v. Michigan Chamber of
Commerce, which upheld a Michigan
statute prohibiting corporations from
making independent expenditures sup-
porting or opposing state candidates.
The court’s holding in Austin that such
expenditures could be restricted put that
decision in tension with the 1976 case
Buckley v. Valeo, in which the Court
distinguished between direct contribu-
tions to political campaigns and inde-
pendent expenditures and held that a
limit on independent expenditures was
unconstitutional. The Bipartisan Cam-
paign Reform Act, which restricted in-
dependent expenditures at the federal
level, was only enacted as recently as
2002.
Some of the criticisms of the Citizens
United decision ignore the ways in
which its impact could be mitigated
through means that do not implicate
speech so strongly. For instance, Justice
Stevens worries in his dissent that some
corporations might spend money in
support of candidates whom their
shareholders oppose. But corporate
laws can be changed to require permis-
sion from shareholders before a corpo-
ration supports particular candidates.
Members of labor unions already have
the right to choose not to have their
dues used to support political causes.
Even if this decision did signify the
sea change that its detractors suggest it
does, Citizens United would still have
been rightly decided based on First
Amendment law. First Amendment pro-
tection is generally considered to be
most necessary in the domain of politi-
cal speech. The Supreme Court has re-
peatedly and consistently held that First
Amendment protection of speech rights
extends to corporations, stating in First
National Bank of Boston v. Bellotti that,
even in a political context, speech does
not lose its protection “simply because
its source is a corporation.” Because the
free speech right enshrined in the First
Amendment is so fundamental to our
democracy, any law which places a re-
striction on that right must survive strict
scrutiny by being narrowly tailored to
serve a compelling state interest. The
government interest stated in Austin is
that of avoiding the “corrosive and dis-
torting effects of immense aggregations
of wealth” on the political process. But
the Court stated in Buckley that “the
concept that government may restrict
the speech of some elements of our so-
ciety in order to enhance the relative
voice of others is wholly foreign to the
Speech, cont’d on pg. 4

Israel, cont’d from pg. 1
Occupied Territories. A signed letter from the Human
Rights Program attesting to the purpose of her trip and
outlining her agenda did nothing to assuage their mis-
givings.
After almost seven hours, Hebah was directed to
claim her luggage and open it for examination.
“I wasn’t strip searched, but they did pat me down
well,” Ismail said.
After going through her computer, including the ex-
ternal hard drive, the line of questions continued.
While most of those originally holding Ismail ap-
peared rather young, a man in his 30s and clearly in a
position of authority took over the interrogation.
Ismail recounts how this man introduced himself.
“I don’t remember his exact words,” she says. “But
basically he told me, ‘Before we get started, we want
you to know that this is a democratic country, and we
respect other points of view. But we found things on
your external hard drive that are very concerning.’ He
was sure I had some other objective, but I had no idea
what that could be.”
Hebah tried to assure the security officer that her
trip related only to the clinical project and a personal
desire to visit Jerusalem. But he remained convinced
that an article on her computer describing modern Is-
raeli as being on land previously held by Palestinians
pointed to a more insidious motivation and began
pressuring Ismail to allow him to read her emails.
“He told me, ‘I cannot let you through until I know
I can go home and get a good night’s sleep,’” Ismail
said. “He kept saying, ‘If you let me go through your
email, I’ll let you in.”
Having been counselled by Amara prior to the trip
that the security forces had no right to demand access
to her emails, Ismail denied his request. Almost eight
hours after landing, Ismail’s passport progressed from
border control to immigration, who would proceed to
ask the same set of questions. Only later would be
learn that security had finally granted her entry and
immigration ultimately denied her. Again, the de-
mands centered upon her emails, but now the conse-
quences escalated.
“They told me that if I didn’t let them read my
emails, not only would I not be allowed into Israel, I
would be banned for life.”
Having stood by her initial refusal regarding the
personal mail, Ismail cannot ever travel to Israel.
“I always wanted to go to Jerusalem. And this was
finally my chance. But I won’t be trying to go back.”
After being fingerprinted, photographed and hav-
ing her passport scanned, Ismail was moved to van.
She assumed this would take her to the departure gate,
and she texted family about her imminent deportation.
But instead of boarding a plane, Ismail found herself
in the “Hedar Mesuravimor”, or “Rejected Room”, a
holding pen for those awaiting deportation, a place
she describes as akin to “a really bad Egyptian hos-
tel.” This room would become her home over the next
day, as she waiting for a flight 23 hours away. Before
she could re-inform her family, the phone was taken,
along with all of her other belongings.
“Once they asked if I had a heart condition, they
even took my medication. I was allowed to keep one
small sweater.”
Unable to contact her family, Ismail continued to
request that someone contact Amara, so that he could
at least reach out to them. Each time, the person on
duty would simply tell her she could call later. But no
one ever allowed her to make that call.
Morning arrived, and with it a breakfast of cheese
and tea. Lactose-intolerant, Ismail could do little more
than stare at the food. Hours later, she finally met with
Amara, though as her lawyer, not as her professor. Ex-
plaining that they could launch a case and arose media
interest on her behalf, Amara laid out the various op-
tions. However, a best case scenario would take at
least a week, during which Ismail would remain in de-
tention. The decision was made for her to return to the
US.
Finally boarding a plane on Christmas Eve, Hebah
had never managed to leave the Ben Gurion Airport.
Arriving in the U.S., three plainclothes Israeli security
officials walked her to the Department of Homeland
Security and handed over her passport.
“The DHS officer asked if I had been arrested. The
Israelis said no. He asked me if I was an American
citizen, and I said yes. Then he walked me to the front
of the passport line, stamped me and said, ‘Welcome
home.’ I turned to my escort and said, ‘Have a happy
holiday,’ and walked through to meet my family,” Is-
mail said.
Of course, they were worried about me going to Is-
rael in the first place, so now they get to say, I told
you so!” she laughs.
Ismail joins a growing list of human rights and de-
velopment workers recently denied entry to and work
permits in Israel.
“There is a general practice of denying entry to
American citizens,” Amara said. “Its not uncommon
with those of Palestinian origin, or anything about
Jerusalem, the Negev, human rights. In the past, I had
an American student of Pakistani descent who was
also denied entry. No matter what you say, they as-
sume you are going to the Territories.”
According to Reuters, in December 2008, Israel de-
nied entry to Richard Falk, the United Nations Special
Rapporteur on Israeli Behaviour in the Occupied West
Bank and Gaza Strip and an American Jew. According
to Reuters, “Falk had angered Israel by making re-
marks comparing its forces' actions in the Gaza Strip
to those of the Nazis in wartime Europe.” More re-
cently, the Israeli newspaper Haaretz reported that “Is-
raeli immigration police were involved in the arrest
and deportation earlier this month of a Czech pro-
Palestinian activist living in Ramallah.” In addition to
the UN and pro-Palestinian groups, impacted organi-
zations include Oxfam, Save the Children and Doc-
tors without borders.
Amara cannot determine how Ismail’s adventures
will impact the future of the Bedouin land project.
Unable to do the research, the group cannot complete
the project, which must be put on hold until another
trip can be arranged.
“Hebah knew the Goldberg report, there were meet-
ings arranged specifically for her trip,” Amara said.
“It means now we won’t have something ready.”
 Harvard
Page 4
Law
Record
EStabLiShEd MCMXLVi
Matthew W. Hutchins
Editors-in-Chief
Chris Szabla
News: Rebecca Agule
Staff Editors
Opinion: Jessica Corsi
Sports: Mark Samburg
Contributors
Chris Cassidy
Aminu Gamawa
Prof. Charles Ogletree
Nimer Sultany
record@law.harvard.edu
Submit Letters and Editorials to:
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Speech, cont’d from pg. 3
First Amendment.” Even if Buckley had
allowed this rationale, the restriction on
corporations would be both under- and
overinclusive. Such restrictions would
not stop exceptionally wealthy individ-
uals from attempting to influence elec-
tions, but they would freeze out both
nonprofit corporations and the small
for-profit corporations with revenues of
under $1 million which make up the
vast majority of all corporations.
An argument can be made that the
Court showed a lack of judicial restraint
by choosing to overturn the precedent
established in Austin. But in truth, it is
Austin that is the outlier in regards to
First Amendment precedent. No case
before Austin had held that Congress
could prohibit independent expendi-
tures for political speech based on the
speaker’s corporate identity. Buckley, in
fact, had suggested just the opposite.
Two and a half years ago, the Court ar-
guably foreshadowed a move in this di-
rection by upholding an as-applied
challenge to the prohibition in Federal
Election Commission v. Wisconsin
Right to Life, Inc, and the decision in
Citizens United merely brings First
Amendment jurisprudence back in line
with the bulk of the case law. Protect-
ing the ability of corporations and
unions to voice their support for candi-
dates may not be politically correct, but
it is legally so.
Nicholas Joy ‘11 is a 2L.
Harvard Law Record
HOPES AND DREAMS
BY PROFESSOR CHARLES J. OGLETREE, JR.
January 2010 is an occasion that is widely celebrated
around the country, particularly in the African American
community. Not only does it mark the birth of Dr. Martin
Luther King, Jr., but it also commemorates the anniversary
of the election of President Barack Obama ’91 a year ago
this past week. For African Americans, there is a great
amount of pride as they look upon these two historic figures
and their contributions to equality and justice in America.
While celebrating Dr. King’s accomplishments, there is also
the challenge in trying to assess the impact of President
Obama’s election.
The first year of President Barack Obama’s presidency has
produced mixed results. One highlight was his early decision
to select Senator Hillary Rodham Clinton, a fierce competi-
tor during the Democratic primary, as Secretary of State. It
was a bold decision that reflected the President’s ability to
both find talent among the ranks of a group of notable Amer-
icans and to move forward his foreign policy agenda. His
nomination of Eric Holder as the first African American At-
torney General, former Harvard Law School Dean Elena
Kagan ’86 as the first woman to serve as Solicitor General,
and former Second Circuit judge Sonia Sotomayor as the
first Latina on the Supreme Court, were all notable suc-
cesses.
Consistent with President Obama’s eager goal of getting
things accomplished, he not only pushed for the bailout of
the American financial system, helping it avoid falling into
a financial crisis as significant as the Depression of the
1930’s, but also steered Congress through the adoption of an
$800 billion stimulus package designed to find jobs for
Americans throughout the United States and to create finan-
cial resources to address the stagnant economy.
The President’s promise to draw down the number of
troops in Iraq has also been successful, with U.S. Marines
departing the country this week as the first wave of the with-
drawal. At the same time, President Obama did not meet his
goal of closing Guantanamo in a year, and, in apparent con-
tradiction to his opposition to the war in Iraq, escalated the
war in Afghanistan. But all throughout his campaign, he had
made it clear that the real fight, to stem the spread of Al
Qaeda, is in Afghanistan. His decision to send an additional
30,000 troops to Afghanistan to address the growing threat of
terrorism drew unlikely support, but also much criticism
from both sides of the political aisle.
Also looking back on the legacy of Dr. Martin Luther King
this month, we realize he was enormously accomplished in
pushing forward the adoption of the Civil Rights Act of 1964,
the Voting Rights Act of 1965, and ultimately the Public Ac-
commodations Act and the Fair Housing Act of 1968. But
Dr. King also encountered much controversy and objection
to his agenda of non-violence and civil rights. As we look at
the success of the March on Washington on August 28th,
1963, we’re reminded that, less than a month later, four lit-
tle girls were murdered in the 16th Street Baptist Church
bombing on September 21st, 1963. It took events like the
March 1965 beating of John Lewis, who now serves as a
Congressman from Georgia, for America to address issues
of inequality, and President Lyndon B. Johnson’s overt ap-
proval of the Voting Rights Act of 1965.
But President Obama’s first year and Dr. King’s legacy as
a civil rights leader reveal very different attitudes toward war.
January 28, 2010
President Obama and the Legacy of
Dr. Martin Luther King, Jr.
Dr. King was an advocate of non-violence, leading to his his-
toric address at Riverside Church in New York in opposition
to the Vietnam War. It drew harsh criticism, but it reflected
King’s relentless commitment to non-violence even when it
was an unpopular theme to pursue. Similarly, Obama was
one of the early opponents of the Iraq War. He sharply criti-
cized the war in 2002, less than one year after the anniversary
of the death of over 3,000 innocent Americans at the World
Trade Center, in Pennsylvania, and in the Pentagon.
But their contrasting views on war were most evident after
President Obama’s decision to increase the level of troops
the U.S. maintained in Afghanistan, at the same time he was
awarded, like Dr. King, the Nobel Peace Prize. While Dr.
King was also criticized for receiving the Nobel Peace Prize
at a young age, it was remarkable how much he had furthered
the agenda of civil rights in his 39 years before his assassi-
nation. President Obama has had the same goals in mind,
but his agenda has taken one step back after attempting to
push forward access to greater opportunity and equality. In
his remarkable speech as the recipient of the Nobel Peace
Prize, he defended the idea of a “just war”, and received the
unlikely support of people such as former Alaska Governor
Sarah Palin, Newt Gingrich, and Henry Kissinger.
President Obama’s first year in office was also a mixed
record for African Americans. While the diversity of the
President’s political appointments have been lauded – Pres-
ident Obama has pursued an aggressive effort to create a very
diverse cabinet, appointed a diverse group of federal judges
at the District and Circuit court levels – there has been much
concern about the slow state of economic development, the
lack of structured efforts to increase the opportunities for
African Americans in urban areas, and failure to fulfill an
expected goal of greater diversity and accomplishment
throughout the nation. And yet, as we look beyond the lim-
ited success that has directly affected the African American
community, President Obama has pushed to ensure greater
support for minority owned businesses, and for a race to the
top for educational reform and a health care plan, at best a
fragile hope at the moment, designed to provide coverage to
an unprecedented number of African Americans.
The President’s ambition has not been questioned. His
ability to achieve many of his lofty goals in the face of fierce
resistance from both Republicans and moderate Democrats
only reinforces the challenges he will face during the next
four years and beyond. What really stands out is the Presi-
dent’s ability to take bold positions, push multiple agendas at
the same time, and to persuade doubters, as he undoubtedly
will have in his State of the Union address this week. The
same enthusiastic focus on multiple issues will guide his
presidency for years to come.
While President Obama cannot be satisfied that he has ac-
complished as much as he had ambitiously sought, it is cer-
tainly true that he has developing unprecedented levels of
global support for America’s move from isolation to an in-
clusive agenda. It will take decades to fully evaluate the im-
pact of his election and accomplishments, but it’s hard to
doubt that his efforts to improve America’s global relation-
ships, and to invest in its economy, not only face great chal-
lenges, but that, in time, will bear fruit.
Charles J. Ogletree, Jr. ’78 is the Jesse Climenko Professor
of Law at HLS.
January 28, 2010
C AMBRIDGE , I NDIA : T HE S MELL
BY JESSICA CORSI
All of Delhi is being transformed. The entire city is
preparing for the 2010 Commonwealth games. I trav-
eled there in January to research the right to food for
a UNDP report. I was there two years ago in Janu-
ary, also to write a report on the right to food. This
time, having come to see what had changed, I was
greeted by streets lined with piles of bricks and
mounds of dirt. Women in tightly wrapped saris hoed
the earth as their children played next to them, and
mixed groups of men and women laid bricks in new
walls. I watched them daily as my auto-rickshaw was
crisscrossing the city to deliver me to meetings, and I
wondered if this was a good thing or a bad thing. I
wondered if this was employment for the unemployed
or if when the games came undesirable people would
be swept out of sight. I wanted to know whether life
had really improved for those at the bottom of society.
I was told that it hasn’t. When I met with Dipa
Sinha, one of the Commissioners monitoring the im-
plementation of the still-open 2001 Supreme Court
case on the right to food, she informed me that reports
of starvation deaths have been higher in the past year
than in any year since the opening of the case. There
is still no India-wide system to ensure that the Court’s
orders are put into action, and so relief for starving
communities happens in a
haphazard way, if at all.
Ms. Sinha told me that she
has seen people that they are
monitoring die over the
course of a year. In a typical
case, a report will come that a
marginalized community, per-
haps a community of tribals
or dalits, is starving and with-
out any work. NGOs lobby
the local and State govern-
ment to provide government
guaranteed employment and
subsidized grains available to
the community. But these
communities are often cut-off
from accessing to social serv-
ices due to discrimination
against minorities, and when
the requesting organization
follows up with the authori-
ties, none of the promised ac-
tions have been taken. By that
Photo: flickr user HelpAge
time, the handful of severely
hungry persons identified as on the brink will have
died. But in these ignored communities there are al-
ways hungry and malnourished people who are on the
brink of dying from starvation.
It is hard for me to hear this information, but it is the
information that I traveled to obtain. I was there to
search for signs of implementation of the right to food
orders, and to evaluate the direction that the right to
food is taking in India. One of the many paradoxes of
India is the coupling of its famous economic growth
with poverty that seems to have only intensified in the
most vulnerable communities.
Journalist David Rieff is writing a book on malnu-
trition and hunger. I had breakfast with him at the
India Habitat Center, a beautiful place, a place of calm
in the middle of Construction City. I was disoriented
as I ate huevos rancheros in an American style diner,
with Abba playing in the background, as we discussed
the “why” of the paradox.
Were we still in Delhi?
He pointed out some of the unique aspects of Indian
hunger, as compared to hunger in other countries. The
gender question looms large in India, for example. In
other countries, he has found, a household with food
will have equally fed women and men, while in India
a household with food might have a nourished man
and a malnourished woman. And then there are other
key indicators of health that are missing. He has trav-
eled extensively in China, and he said he can drink
the water there. There is also no comparison with the
level of open defecation found in India. As he spoke
Harvard Law Record
OF
I had a flashback to my 2008 trip to inner Uttar
Pradesh, the first time I had seen so many people
openly defecate. There is no infrastructure to deliver
basic services like sewage. Yet, I thought to myself,
India has plans to test a new space shuttle, with an eye
to making headway in the satellite industry. This is
part of the paradox: impressive development is tak-
ing place at the highest level; but the bottom rungs
can’t subsist on plans for a spaceship. Poverty at the
bottom is still a life and death emergency.
David Rieff mentioned another element of the par-
adox: the economic boom has resulted in an even
greater divide between the classes, with newly minted
cities for the rich that allow the affluent to screen out
the signs of poverty and, perhaps most importantly,
interactions with the poor.
An illustration of this is what I came to think of as
the “car and driver set.”Delhi smells. (and so do
Mumbai, Chennai, and…) It is extremely noisy. In-
stead of using turn signals or staying in one’s lane
(when it is even marked) you instead make ample use
of your car horn. All of this can give you an instant
headache. But if you have a car and a driver, you are
insulated from the smell, the noise, and the stress of
the drive. This phenomenon is not new, but the
greater number of people catapulted into this “car and
driver” class and the construction of new suburbs that
house only the affluent is a movement toward balka-
nization. Rieff mentioned Gurgaon, a suburb on the
edge of Delhi, as an example of this new arrangement.
Coincidentally, I was having dinner there that very
night. When I spoke to the friend I would be meeting
he said, “I’m warning you, Gurgaon is my least fa-
vorite place in India.” This was a strong statement
from a person who had a deep affection for the coun-
try.
I arrived in the dark. “This isn’t so bad,” I told him.
I had been bracing for Armageddon.
“You haven’t seen it in the day. There’s no infra-
structure. The workers and their families that have
come to build this place have no toilets, no water, no
electricity. In the daylight, the whole city smells like
shit. Of course, from inside the office buildings, you
can’t smell it. They even have their own electricity
generators for when the power goes off.”
The power went off over dinner. But then, right on
cue, a generator kicked in and restored the lights.
On the drive back from Gurgaon to Delhi, my cab
driver was in a talkative mood. He wanted to share
what he thought of India’s development.
“I’ve been in this business, driving only tourists, for
18 years. And still, 18 years later, my family and I
live in the same place. Our standard of living hasn’t
changed. And why not? Because the wages for us
stay the same, and the prices go up. The prices of
food, even the prices of vegetables, just keep going
up. They keep saying, India is growing, India is shin-
ing, this is a new India. But a New India for who?
Page 5
D EVELOPMENT ?
Who is getting this new India? I say, give first to the
very poor. There are people here who have less than
50 rupees [$1 USD] a day. Give to them first.”
I had heard the same thing from all of my cab driv-
ers. “The price of sugar has more than doubled in the
past month,” said one auto-rickshaw driver, as we
drove we passed a truck draped in banners and filled
with people chanting on bullhorns. “It’s a political
party,” the driver explained. “They’re talking about
the increase in food prices.” We arrived at my desti-
nation, the Supreme Court Commissioner’s office,
and she too immediately mentioned the food prices
and the price of sugar. The anecdotal reports of rising
prices are backed by facts. But you can hear from peo-
ple directly about how they’re being impacted, and I
got a sense that people are heavily impacted.
Life goes on, and plenty of people are doing fine,
even as others literally starve to death, and as almost
half of India’s children remain malnourished to a
point of permanently stunted growth. Over one week-
end, I sat with a friend on the beach in Chennai, and
watched a festival being cleaned up. “There are no
trashcans,” she said, pointing to the area where the
festival had taken place. “This (the people cleaning)
is the rag picker class.” Instead of lining the festival
area with bins, people were brought in the next day
to clear everything away. “Why not have bins? In
order to generate jobs?”
“Maybe,” she shrugged. “But
this caste of people has tradi-
tionally cleaned the waste.”
My friend is a development
economist. She shrugged be-
cause she knows that poverty
in India—and in any place,
but perhaps more so here—is
complicated. She took me to
an estuary where brand new
office buildings perch on the
edge of the water. "This is a
very fragile ecosystem," she
said. "It will probably be de-
stroyed by the development.
But if you talk to people, it
seems like this is what they
want. They want the new air
conditioned shopping malls."
But these are the people in
the cities, who can afford to
go into these malls. In the
rural areas, they want any em-
ployment they can find, and
they want it now. The cities are mushrooming with in-
vestment, but more than two thirds of the population's
income still derives from agriculture. As the govern-
ment of India focuses on the high tech side of devel-
opment, the farmers are being left behind.
In my last interview before I flew home, I asked,
“What remains to be done? What are the next steps?”
“Research,” responded my interviewee, without hes-
itation. “We need more in depth studies as to why the
programmes that we have, the Supreme Court orders
that we have, the laws that we have, are working or
not working.”
But what will come first — more research, or an ex-
panded space program? The buildings to house for-
eign companies in the growing tax-free zones, or the
infrastructure to provide basic programs for the peo-
ple who construct the buildings? If things stay on
their present course, development as usual will con-
tinue to have a negative impact on the people at the
economic margins — which presently seems to be the
majority of the Indian population.
I spent my last weekend in India in Mumbai. “Have
you been to Delhi lately,” I asked a friend. “It’s a con-
struction site.”
“I heard that,” he responded, “I wonder what it will
look like in time for the games.” So do I. I wonder
what it will all look like in the near future, and
whether people like my taxi drivers and the women
in saris digging on the side of the road will experience
change.
Page 6
Corruption, cont’d from pg. 2
and constant threat to our democracy. History
provides some powerful tools to allow us in-
corporate the anti-corruption principle into the
constitutional law of democracy. We should
pay attention to it”. The recent decision of the
Supreme Court ignores this history, undermin-
ing the Constitution’s efforts to curb corruption
at the highest level.
The 5-4 conservative majority decision was
delivered by Justice Anthony Kennedy ’61, and
concurred in by Justice Samuel Alito, Chief
Justice John Roberts ’79, Justice Clarence
Thomas and Justice Antonin Scalia ’60. Justice
Sonia Sotomayor began her Supreme Court ca-
reer with a dissent. She joined four other lib-
eral justices in disagreeing with the majority
decision. The dissenting judgment delivered by
Justice Stevens severely criticized the majority
court for ignoring the dangerous consequence
of the decision on democracy:
“At bottom, the Court's opinion is thus a re-
jection of the common sense of the American
people, who have recognized a need to prevent
corporations from undermining self govern-
ment since the founding, and who have fought
against the distinctive corrupting potential of
corporate electioneering since the days of
Theodore Roosevelt. It is a strange time to re-
pudiate that common sense. While American
democracy is imperfect, few outside the ma-
jority of this Court would have thought its
flaws included a dearth of corporate money in
politics,” Justice Stevens wrote.
The decision overruled a decade of precedent
laid down in McConnell, a 2003 decision that
upheld the part of the Bipartisan Campaign Re-
form Act of 2002, which restricted campaign
spending by corporations and unions, as well
as Austin v. Michigan Chamber of Commerce,
494 U.S. 652, a 1990 decision that upheld re-
strictions on corporate spending to support or
oppose political candidates.
In his weekly address on Saturday, President
Barack Obama ’91 criticized the decision as “a
huge victory to the special interests and their
lobbyists”. The President expressed his disap-
pointment with the ruling, saying that he could
not “think of anything more devastating to the
public interest. The last thing we need to do is
hand more influence to the lobbyists in Wash-
ington, or more power to the special interests to
tip the outcome of elections”. He noted that
even foreign corporations would now have say
in U.S. politics; candidates that disagreed with
corporations would come under serious attack
from the corporations during election.
Obama went on to observe that “all of us, re-
gardless of party, should be worried that it will
be that much harder to get fair, common-sense
financial reforms, or close unwarranted tax
loopholes that reward corporations from shel-
tering their income or shipping American jobs
offshore”. He also cautioned that the decision
makes it “more difficult to pass common-sense
laws” to promote energy independence or ex-
pand health care.
The danger is clear!
The competition will now be intense among
the corporations to producing the highest num-
ber of Senators and Representatives. Doesn’t
this undermine the role of the public in the
American democracy? Can individuals’ contri-
bution to candidates now count in the cam-
paign process? Will this be the last Congress
that is truly elected by the people? How much
would this decision contributing in promoting
institutional corruption? I am sure most politi-
cians will be more concerned about pleasing
the corporations than their constituencies. It
will be dangerous for any of them to fall out
with the corporations.
American democracy has been a model to
many countries across the globe. But the recent
decision by the Supreme Court legalizing di-
rect corporate participation which over turn a
Harvard Law Record
time revered restriction on the corporation is a
worrisome development that deserve concern
of anyone that is interested in American
democracy’s future. Citizens United has intro-
duced a new era in the U.S. politics.
The Constitution’s “We the People” has grad-
ually become “We the Corporations”. Equating
corporations with human beings undoubtedly
undermines the participation of individual cit-
izens in the political process. Election into po-
litical office under the new regime will largely
depend on having the highest donation from
the corporations. Corporations and their inter-
ests, which sometimes include interest of for-
eign nationals, will now have the strongest
voice in the U.S. politics.
It will not be surprising to see Blackwater,
Wal-Mart, Exxon and other corporations being
better represented in Congress than citizens,
whose interest and participation the Constitu-
tion seeks to preserve. This is an unwelcome
development that anyone concerned about pre-
serving the U.S.’ long-cherished democracy
must oppose.
The matter of democratic integrity, trans-
parency and accountability transcends the usual
liberal/conservative or Democrat/Republican
divide. It is an assault on democracy and nega-
tion of the text and original understanding of
the Constitution as understood by the Found-
ing Fathers, who strived to craft a document
that would preserve democracy by protecting
the interest of the electorate over and above
other interests.
One might ask if there is anything Congress
can do. Even before the decision was an-
nounced, an advocacy group called Change
Congress was working to pursue the passage of
a bipartisan bill called the Fair Elections Now
Act. The bill is sponsored by congress men
Sens. Dick Durbin (D-IL) and Arlen Specter
(R-PA), and Reps. John Larson (D-CT) and
Walter Jones (R-NC).
“Under this legislation, congressional candi-
dates who raise a threshold number of small-
dollar donations would qualify for a chunk of
funding—several hundred thousand dollars for
House, millions for many Senate races. If they
accept this funding, they can’t raise big-dollar
donations. But they can raise contributions up
to $100, which would be matched four to one
by a central fund. A reduced fee for TV airtime
is also an element of this bill. This would cre-
ate an incentive for politicians to opt into this
system and run people-powered campaigns.”
President Obama said that he has instructed
his advisers to work with Congress on a force-
ful, bipartisan response. In a New York Times
op-ed, David D. Kirkpatrick wrote that because
of the enormous threat of this decision to
democracy, some members of Congress are
working hard to introduce new laws that will,
cure the defect by either
• Imposing a ban political advertising by cor-
porations that hire lobbyists, receive govern-
ment money, or collect most of their revenue
abroad;
• Tightening rules against coordination be-
tween campaigns and outside groups so that,
for example, they could not hire the same ad-
vertising firms or consultants; or
• Requiring shareholder approval of political
expenditures, or even forcing chief executives
to appear as sponsors of commercials their
companies pay for.
What is really necessary need, as Professor
Lessig puts it, is an alternative, “Not the alter-
native that tries to silence any speaker but an
alternative that allows us to believe once again
that our government is guided by reason or
judgment or even just the politics of the people
in a district and not by the need to raise
money.”
Aminu Gamawa is an LL.M. student from
Nigeria.
January 28, 2010
SEC, cont’d from pg. 1
Stamford, Connecticut with over $7 billion in assets under man-
agement. Champ served until the end of 2009 as Executive Vice
President and General Counsel at Chilton, in addition to repre-
senting the interests of the hedge fund industry as a member of
the board of directors of the Managed Funds Association.
During this year's January term, Mr. Champ came to Harvard
Law School to teach an intensive course on the laws and regu-
lations that govern the structure of the private fund industry, a
subject he had taught two years before in the winter term of
2008. According to Champ, those two years had seen tremen-
dous changes in the industry. The havoc caused by the financial
crisis in September of 2008, as well as the stunning revelation of
the Madoff fraud, left the private fund industry in a state of
shock, with investors in a panic and fund managers worried
about the reliability of their business partners.
“I don't think it really occurred to people that Lehman, Mer-
rill, would be swallowed up and gone,” said Champ, speaking
with the Harvard Law Record. The realization of counterparty
risk meant that overnight the entire hedge fund industry had to
scramble to evaluate the creditworthiness of its prime brokers
and other counterparties. In the aftermath of the crisis, the en-
tire hedge fund industry has come under intense legislative and
regulatory scrutiny as lawmakers in Washington seek to outline
a bold reform agenda. Champ points to the verification of cus-
tomer assets as a key priority of the SEC's present investiga-
tions. “Are the securities really there?” This is the question that
many wish had been asked earlier in the Madoff case, and thus
a rallying point for the Commission.
And now with the high profile prosecution of Raj Rajaratnam,
hedge funds have again come to the public eye in a negative
light. To Champ, insider trading is just one of many forms of
bad behavior that must be taken seriously by compliance officers
at funds, whose jobs it is to detect and curtail such abuses from
the inside. “Good policies and procedures that are inforced can
make a huge dent in illicit activity. If top managers are willing
to support compliance, it creates a culture of trust and eliminates
a lot of problems.” The role of the compliance officer is crucial,
says Champ, if the company is going to avoid the devastating
consequences of merely being investigated for the possibility of
any insider trading, a fact illustrated by the collapse of the
Galleon Group funds within 24 hours of Rajaratnam's arrest. As
Congress contemplates the extension of registration require-
ments to all hedge funds, these compliance concerns will only
become more important for the managers of funds.
With regard to his decision to leave the private fund industry
and enter government service, Champ says that his decision was
primarily based on the good relationship he had with outgoing
Regional Associate Director Tom Biolsi. When the commission
began looking for a replacement, Biolsi suggested to Champ that
he consider the position because of the invaluable analytical
tools he could bring to the job. One of the most challenging
aspects of the commission's work, says Champ, is penetrating
the minutiae of fund management to recognize the red flags re-
quiring attention right away. As a long time fund executive and
General Counsel, Champ hopes to bring his experience to bear
in a way that strengthens the capacity of the commission to pro-
vide effective and efficient oversight of the thousands of regu-
lated entities in the New York area.
Despite new legislative restrictions on the independence of
hedge funds that are likely to be passed, Champ believes that
the private fund industry is becoming more concentrated and so-
lidified in the financial landscape. “What started as an entre-
preneurial movement has become more institutionalized, but
because of investor demand.” The concentration is in part, says
Champ, due to the benefits such institutionalization can provide
in strict compliance policies and a consistent reputation for good
business practices and strong investment performance. And yet,
because of the diversity of investor tastes in the private fund
world, Champ says, “You have hot money investors that always
want to go after the small funds, so you're always going to have
some entrepreneurs.” In this sense the hedge fund industry em-
braces the creative destruction that comes as one fund fails only
to be replaced by another, each pursuing their own innovative in-
vestment strategies. Although such instability might alarm some
outsiders, Champ points out that investors do a considerable
amount of due diligence before entrusting their funds to a man-
ager, especially since most funds require minimum investments
of over $1 million. “Investors have the ultimate motivation of
having their money on the line.”
Dissenting Opinion?
EMAIL RECORD@ LAW
January 28, 2010
Gaza, cont’d from pg. 8
cupier and thus refused to apply the Geneva Conventions,
claiming that the Palestinian territories are contested areas.
It even refers to Palestinian territories by their Biblical
names: Judea and Samaria. Israeli settlements (121, plus
those in East Jerusalem) and their “natural growth”
(479,000 settlers) aim at creating facts on the ground that
enable Israel to control as much land as possible. Credible
estimates suggest Israel has invested $100 billion in devel-
oping Jewish-only infrastructure inside the West Bank. A
state that intends a temporary occupation would hardly
make such investments.
As historian Avi Shlaim demonstrated in his book The
Iron Wall, Israeli governments have worked under a strat-
egy according to which time is on the Zionists’ side: the
natives will be overwhelmed by the power of the settlers,
ultimately internalizing their subjugation and capitulating
to the new reality of power. This means there is no need
for peace agreements, and explains Israel’s rejection of nu-
merous peace deals through its history. Israel’s refusal to
engage with the Arab peace proposal emerging from the
Beirut summit in 2002 was only one of the most recent ex-
amples of this policy.
The history of Palestine, then, is the story of the escala-
tion of Israeli power. The International Court of Justice rec-
ognized this in its July 2004 ruling on the construction of
Israel’s “separation wall”. The ICJ considered the wall part
of an Israeli policy to alter the demographic composition of
the Occupied Territories, a policy tantamount to a de facto
annexation. The ICJ emphasized the detrimental effects of
these policies on the right of the Palestinian people to self-
determination. Israeli policies make the prospects for the
realization of this right unrealistic.
Even the withdrawal from Gaza in 2005, the so-called
disengagement plan, sought to entrench the colonization of
the West Bank. Then Prime Minister Ariel Sharon’s senior
adviser, Dov Weisglass, described the withdrawal from
Gaza, in an interview with Haaretz in August 2004, as “the
freezing of the political process”: “And when you freeze
that process, you prevent the establishment of a Palestinian
state and you prevent a discussion about the refugees, the
borders and Jerusalem. Effectively, this whole package that
is called the Palestinian state… has been removed from our
agenda indefinitely. And all this with [President Bush’s]
authority and permission... and the ratification of both
houses of Congress.”
Thus, describing Sharon’s withdrawal from Gaza as a
prelude to further withdrawals and a peace agreement is
patently false.
Note that the withdrawal from Gaza did not mean that
Israel relinquished control of every aspect of life in the ter-
ritory. A report by the Israeli organization Gisha listed the
administrative aspects which Israel continues to control
there: not only its territorial waters, airspace, border cross-
ings, fuel, and electricity, but also Palestinians’ population
registry (which determine who is a “resident” of Gaza), and
even taxes and the transfer of tax revenues. Through these
policies, notes Sara Roy, Israel continues to exploit and
“de-develop” the Gazan economy as it has done for
decades.
Ehud Olmert and Tzipi Livni have repeatedly said in re-
cent years that they believe in the right of the Jewish peo-
ple to all the “Land of Israel”, but they understand the need
for “compromise.” Ironically, Hamas’s statements practi-
cally mirror these: it believes in the right of the Palestinian
people to all the land of Palestine, but is willing to offer
long-term cease-fire agreements. The fact that Hamas is
willing to offer cease-fire agreements undermines the ar-
gument that it is committed to the destruction of Israel. But
Hamas’s proposals have been dismissed by successive Is-
raeli governments from Yitzhak Rabin on.
The fact that Hamas refuses to “recognize Israel” is also
unsurprising. For one, a focus on Hamas’s charter, which
states this policy, is a reductionist view, concentrating on an
anachronistic document, which ignores the evolution of
Hamas’s thinking and politics since drafting the charter.
Khaled Hroub, the author of a book on Hamas, has refuted
such simplistic claims by discussing more recent docu-
ments produced by Hamas.
More importantly, what Israel is demanding is recogni-
tion of its ideological character as a Jewish state. In other
words, Hamas is not asked to recognize Israel as a de facto
entity; Israel already has de facto recognition by virtue of
its tanks, warplanes and bulldozers. Rather, Hamas is asked
Harvard Law Record
to recognize the current, ethnically-exclusivist ideological
character of Israel and the legitimacy of the Zionist project
that displaced the Palestinians. Hamas is asked to renounce
the history of the Palestinian people as a precondition for
negotiations.
From a Palestinian perspective, recognizing Israel as a
Jewish state means both rejecting the Palestinian right to
return and perpetuating the subordination of the Palestinian
citizens of Israel. Rejecting the right to return before the
negotiations even start aborts such negotiations or renders
them meaningless. Thus, the fact that Hamas rejected Oslo
and refuses to recognize the exclusive Jewishness of Israel
has little to do with religious fundamentalism.
In any event, it’s ironic that the leaders of Egypt, Jordan
and Saudi Arabia are corrupt dictators, but they are seen as
“moderates”. Hamas, on the other hand, has not been
shown to be corrupt, was elected democratically and has
never attacked any targets outside Palestine and Israel.
Nonetheless, it is considered “extremist.” The criterion for
“extremism” is not disregard for human rights, otherwise
the states of Egypt and Saudi Arabia deserve the same
label. Rather, the criterion is the rejection of Israeli dictates.
At the same time, Israel and the United States have also
fragmented Palestinian politics by actively encouraging so-
called “moderates” and isolating so-called “extremists,”
aborting attempts to form a unity government. As Vanity
Fair reported in April 2008, Hamas was reacting to a staged
coup d’état when it took control of Gaza. The “moderates”
in Ramallah refused Hamas’ call for a unity government
under pressure from the previous Bush administration and
Israel.
In fact, ever since Hamas came to power in January 2006,
through democratic elections, Israel had boycotted its gov-
ernment, withheld Palestinian tax money, imprisoned and
assassinated dozens of Hamas’ parliament and cabinet
members, imposed a tight blockade that resulted in a hu-
manitarian crisis, and made the lives of 1.5 million Pales-
tinians (52% of whom are children) living in what is
effectively an open-air jail, making them totally dependent
on Israeli political demagogues and security technocrats.
Finally, Israel violated the June 2008 cease fire by attack-
ing a tunnel under Gaza’s border in November 2008, killing
Hamas members in a prelude to its large-scale onslaught
on Gaza that was long in the making.
Both the 2006 Lebanon war and the Gaza onslaught
should be understood in this context. Israel wanted to make
any opposition and resistance to its hegemony costly in
terms of civilian life and thereby to strengthen the so-called
“moderate” camp. According to this logic, only when the
Arabs and Palestinians recognize the impossibility of de-
feating Israel will they accept the fait accompli designed
by Israel. Thus, Israel did not attack Gaza to end Hamas’
rocket attacks. This could have been achieved by observing
the cease-fire agreement and lifting the siege that is stran-
gling Gaza. Rather, it aimed at crushing any resistance to its
domination.
Those who are busy justifying Israeli actions as if Israel
were a well-meaning occupier want us to focus on Pales-
tinian violence instead of the siege; on the symptoms (re-
sistance) rather than the root cause of the conflict (the
occupation), and on one Israeli soldier captured by Pales-
tinians rather than the thousands of Palestinian prisoners.
By doing so, they legitimate the oppressive actions of the
longest military occupation since World War II, an occu-
pation that even decides, as Haaretz reported in November
2009, when and whether Palestinians can eat pumpkin,
chocolate or pasta.
Martin Luther King, Jr. wrote in his letter from Birming-
ham: “I have almost reached the regrettable conclusion that
the Negro’s great stumbling block in the stride toward free-
dom is… the white moderate, who is more devoted to
‘order’ than to justice; who prefers a negative peace which
is the absence of tension to a positive peace which is the
presence of justice; who constantly says: ‘I agree with you
in the goal you seek, but I cannot agree with your methods
of direct action’; who paternalistically believes he can set
the timetable for someone else’s freedom; who lives by a
mythical concept of time and who constantly advises the
Negro to wait for a ‘more convenient season’.”
Similarly, Palestinians should not be asked to wait for
their freedom. Instead, all those who hold equality, free-
dom and justice dearly should support their struggle and
help them obtain it.
Nimer Sultany is an S.J.D. candidate and a Palestinian cit-
izen of Israel.
Page 7
Coakley, cont’d from pg. 1
ripe for a Republican insurgency. Mem-
bers of the “Tea Party” movement and
other right wing organizations gave mil-
lions to the Brown effort, and their vol-
unteers poured into the state.
Their contributions are borne out in
the totals spent by each candidate –
Brown’s campaign, fueled by direct
contributors, spent $8.7 million to Coak-
ley’s $5.1. The difference was only
made up by spending from the Demo-
cratic Party, which did not jump in until
late in the game. Despite Brown’s
claims that he was running against the
“machine” candidate, the picture that
has emerged of his effort is of a well-
oiled conservative machine able to turn
out its base and use its considerable re-
sources to turn independents slighted by
the indifference of the Coakley cam-
paign.
Another theory posits that Brown’s
victory was driven by populist anger.
Furious that the Democratic Party and
President Obama had failed to reign in
Wall Street, voters had lashed out,
choosing, paradoxically, the representa-
tive of a party pledged to do even less to
regulate the financial sector than his op-
ponent. This notion seems to assume
that Massachusetts voters acted out of
blind rage or misinformation, but vet-
eran pollsters consistently rate Massa-
chusetts residents among the most
informed on national issues.
Were Massachusetts voters simply
more conservative than assumed, just
waiting to lash out at the state’s Demo-
cratic establishment after the death of
one of the popular Senator Kennedy? In
one poll, voters surveyed after the elec-
tion were found to rate President
Obama’s job performance at only 40%,
a 20% drop from only two months be-
fore. Nate Silver, the fivethirtyeight.com
poll aggregator, found such a drastic
drop unlikely. Did some left wing vot-
ers abandon support for Obama? Or was
turnout skewed? A Washington Post-
Kaiser-Harvard poll conducted after the
election indicated continuing support for
Obama (at 60% of voters and nonvoters
surveyed). The evolving effort to reform
health care received less support – only
about half those surveyed supported it,
despite strong support for Massachu-
setts’ universal coverage.
Turnout across the state was unusually
high for a special election, at 54% of the
electorate, compared to around 30%
during the Senate primary. But it was es-
pecially high in outer suburbs that went
heavily for Brown. Coakley saw high
totals in urban areas that traditionally
vote for Democrats – including Boston,
Worcester, and Lowell. But in all these
areas, she was handicapped by consid-
erably lower turnout.
The overall message appears to be that
the Democratic base is discontented –
but not necessarily with Obama. Beyond
Coakley’s lackluster candidacy, health
care reform was not overwhelmingly
popular. Massachusetts Democrats do
not tend to be small minded – the fact
that Massachusetts is already covered by
a universal health care plan is unlikely
to have motivated their discontent. But
dissatisfaction with the performance in
the party that has been overwhelmingly
in power surely played some role in
keeping voters away from the polls in
one of the state’s most furiously con-
tested elections.
Page 8 Harvard Law Record January 28, 2010

O NE Y EAR A FTER G AZA W AR , C ONDITIONS OF V IOLENCE F ESTER

BY NIMER SULTANY
One year after the Israeli onslaught on Gaza, the ter-
ritory is still strangled by a comprehensive, tightening
siege. And the consequences of last winter’s war,
which ran from December 27th to January 18th, have
been few. Despite the horrific outcomes and images of
civilian death and destruction caused by Israel, war
criminals are still at large, and numerous reports by
well-known human rights organizations and inde-
pendent international bodies have done little to effect
accountability and freedom.
Egypt has started to build a seven-mile-long under-
ground steel wall with the assistance of the United
States Army Corps of Engineers. Israel has further de-
fied international norms by dismissing the UN’s Gold-
stone Report on abuses of humanitarian law during
the conflict offhand. It refuses to conduct an inde-
pendent inquiry into the Report’s findings. Israel has
also been trying to prevent foreign judicial inquiries
into such crimes.
The defenders of Israel’s strategy continue to em-
ploy the same mundane arguments they have used in
the past. These arguments divert the discussion from
substance to procedure by claiming bias and selectiv-
ity on the part of international bodies, or by using ad
hominem attacks. This time, however, the attacks
won’t work as they have in the past.
The internationally-revered jurist and self-pro-
claimed Zionist Judge Richard Goldstone headed the
United Nations fact finding mission on the Gaza on-
slaught, which produced the Report that bears his
name. He insisted that the mandate of his committee
be expanded to include crimes committed by both Is- Dahiya Doctrine.
raelis and Palestinians. The Report is not only explicit ***
in its criticisms of both Israel and Hamas, it even as- Yet legitimate complaints that Israeli aggression
sumes that Israel acted in self-defense. Considering against Gaza has been disproportionate or is counter-
this, it is difficult to believe that productive are not effective re-
the Israeli government’s allega- buttals to the Israeli government’s
tions of bias and its reasons for self-justifications. In fact, these
refusing to engage with the Re- lines of argument presuppose that
port are sincere. Israel was, at least in part, justi-
But critics of the Goldstone Re- fied in its “defensive security op-
port trivialize the gravity of the eration”. When focused on these
war crimes it documents by objections, the dispute revolves
claiming that civilian deaths and around the numbers of Palestin-
destruction of infrastructure were ian civilians Israel would have
not a matter of policy, but of the been “justified” in killing.
misconduct of a minority of sol- Israel was not justified in its ag-
diers. This explanation is dubious gression for more profound rea-
for several reasons. First, while sons than these arguments reveal,
one soldier who stole a credit regardless of the horrendous out-
card from a Palestinian home was come of the onslaught. (Around
prosecuted, no soldiers were pun- 1400 Palestinians killed were and
ished for killing Palestinians. The 5320 wounded and thousands of
Israeli military has failed to pub- houses destroyed or damaged.)
licly hold these so-called “rogue Israel is not a peace-seeking state
soldiers” accountable. Second, acting in self-defense and Hamas
the large numbers of casualties, is not an irrational fundamental-
the enormous and wanton de- Photo: flickr user Toban Black ist or terrorist movement that
struction of property and the targeting of civilian in- wants to annihilate Israel. As I will argue below, both
frastructure by the Israeli army in the 2006 war on perceptions are, at base, crucially misleading.
Lebanon and the onslaught on Gaza indicate that these Israel has proven throughout its history that it has an
attacks are deliberate. As the Report mentions, many expansionist plan to control as much Arab land as pos-
statements by Israeli officials support this conclusion. sible. Israel never acknowledged its status as an oc-
The Israelis have even codenamed their strategy: the Gaza, cont’d on pg. 7

New HLAB Board Launches Pro Se Divorce Project

THE HARVARD LEGAL AID BUREAU’S BOARD FOR THE CLASS OF 2011
President: Rachel Lauter, Executive Director: Naomi Mower,
VP of Practice Standards: Christine Demana, VP of Membership: Alana Greer,
Secretary-Treasurer: Jen Tarr; Officer-Directors: Intake - Caitlin Kekacs,
Outreach - Ben Saltzman, Training - David Carpman,
Research & Tech. - Aaron "Roo" Dulles, Communications - Shaylyn Cochran
As the leadership of the Harvard Legal Aid Bureau passes to a new generation,
its programatic initiatives are continuing to build upon the ongoing needs of the
economically disadvantaged in the Greater Boston area. The bureau has seen
tremendous success in its tenants rights program, called “No One Leaves”, which
has been duplicated by law schools throughout the area and altered the landscape
of bank forclosures of multi-family housing properties. The program, which was
founded by two former HLAB members who went on to receive Harvard's Gary
Bellows fellowship, has helped tenants understand the legal rights they possess in
the face of bank programs offering “cash for keys.”
In addition to its foreclosure related advocacy, the HLAB members provide rep-
resentation in areas like family law, domestic violence, wage and hours disputes,
and receipt of benefits. “Forclosures generally have been in the public eye more,
but as far as the resources of the organization, we remain evenly split between
that and our other activities,” says HLAB incoming President Rachel Lauter '11.
But the social strains caused by the economic downturn have created a particu-
larly acute need for divorce related services among groups that cannot afford an
attorney. A new monthly limited representation program will allow the HLAB's
advocates to help guide clients through the steps necessary to navigate the legal
system on their own and get a divorce without an attorney's help.
“We are always working with marginalized populations,” says Lauter. She has
enjoyed the non-traditional lawyering experience provided by her work with the
HLAB. “If you are interested in meeting diverse clients, this is a great opportunity,
because it involves long-term engagement with those clients.”

To Build or Not to Build? Campus Expansion Turns the Corner, but Jarvis Field Frozen

Walking down Mass. Ave, one can now see completed portions of the edifice of the Caspersen-Wasserstein Northwest Corner Complex. But outside Harkness Com-
mons, where in boom years Jarvis Field featured a skating rink, the abandoned volleyball court has become a patch of frozen sand. Anyone up for pond hockey?